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July 12, 2010 [Issue Date -- real date circa 6/25/10] The Nation
Speech Crimes David Cole
In the peculiar universe defined by the Supreme Court's recent First Amendment rulings, corporations have speech rights that allow them to drown out the voices of ordinary human beings, but human rights activists can be sent to jail for fifteen years merely for advocating for peace and human rights. In Holder v. Humanitarian Law Project, the Court ruled on June 21 that the First Amendment does not protect a human rights group that sought to provide rights training and peacemaking assistance to the Kurdistan Workers' Party (PKK) in Turkey. The United States has designated the PKK as a terrorist organization and prohibited all "material support" to it, including speech advocating human rights. Six justices ruled, for the first time in the Court's history, that Congress can make it a crime to advocate for wholly lawful, nonviolent ends.
According to the Obama administration (and the Bush administration before it), the "material support" law makes it a crime to write an amicus brief in the Supreme Court on behalf of a designated group, to assist it in advocating before the UN or Congress, or to write or publish an op-ed in conjunction with such a group. The Obama administration made the untenable argument that the law did not regulate speech at all but only conduct, and therefore it need not satisfy First Amendment review.
The Supreme Court dismissed that contention, acknowledging that the law criminalized speech on the basis of its content and therefore had to satisfy the same scrutiny, at least in theory, that the Court used to invalidate the McCain-Feingold campaign finance law. But in fact, the Court applied only the most deferential review. It reasoned that the mere possibility, unsupported by any evidence, that human rights advocacy might somehow advance a designated group's illegal ends was enough to justify prosecuting human rights advocates as "terrorists" for their speech, even when that speech was indisputably designed to discourage terrorism. In the eyes of this Court, then, multinational corporations must be allowed to spend millions on political campaigns, but a human rights activist can be sent to jail for pursuing peace.